EXHIBIT 7.1
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made as of November 18, 1995 by
XXXXXX XXXXXX ("Pledgor") in favor of IXYS CORPORATION, a California corporation
("Pledgee").
RECITALS
A. Pledgor has concurrently herewith executed that certain
Promissory Note (the "Note") in favor of Pledgee in the amount of seven
hundred seven thousand two hundred thirty eight dollars and eighty three cents
($707,238.83) in payment of the purchase price of fifty four million four
hundred two thousand nine hundred and eighty seven (54,402,987) shares of the
Common Stock of Pledgee; and
B. Pledgee is willing to accept the Note from Pledgor, but only
upon the condition, among others, that Pledgor will have executed and
delivered to Pledgee this Pledge Agreement and will have delivered the
Collateral (as defined below) to Xxxxxx Xxxxxxxx (the "Pledgeholder"), as
agent for Pledgee. The Pledgeholder shall also serve as an escrow agent
pursuant to a Joint Escrow Instructions and Pledgeholder Agreement of even
date herewith among Pledgor, Pledgee and the Pledgeholder (the "Joint Escrow
Instructions").
AGREEMENT
Pledgor hereby agrees as follows:
1. SECURITY INTEREST.
As security for the full, prompt and complete payment and
performance when due (whether by stated maturity, by acceleration or
otherwise) of all indebtedness of Pledgor to Pledgee created under the Note
(all such indebtedness being the "Liabilities"), together with, without
limitation, the prompt payment of all expenses, including, without limitation,
reasonable attorneys' fees and legal expenses, incidental to the collection of
the Liabilities and the enforcement or protection of Pledgee's lien in and to
the collateral pledged hereunder, Pledgor hereby pledges to Pledgee, and
grants to Pledgee a first priority security interest in, all of the following
(collectively, the "Collateral"): (a) fifty four million four hundred two
thousand nine hundred and eighty seven (54,402,987) shares of Common Stock of
Pledgee represented by Certificate number C-261 (the "Pledged Shares"), and
all dividends, cash, instruments, and other property or proceeds from time to
time received, receivable, or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares; (b) all voting trust
certificates held by Pledgor evidencing the right to vote any Pledged Shares
subject to any voting trust; and (c) all additional shares and voting trust
certificates from time to time acquired by Pledgor in any manner (which
additional shares will be deemed to be part of the Pledged Shares), and the
certificates representing such additional shares, and all dividends, cash,
instruments, and other property or proceeds from time to time received,
receivable, or otherwise distributed in respect of
1.
or in exchange for any or all of such shares. The term "indebtedness" is used
herein in its most comprehensive sense and includes any and all advances,
debts, obligations and Liabilities heretofore, now or hereafter made, incurred
or created, whether voluntary or involuntary and whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether recovery upon such indebtedness may be or hereafter
becomes unenforceable.
2. USE OF COLLATERAL.
At any time, without notice, and at the expense of Pledgor,
Pledgee in its name or in the name of its nominee or of Pledgor may, but will
not be obligated to: (a) collect by legal proceedings or otherwise all
dividends (except cash dividends other than liquidating dividends), interest,
principal payments and other sums now or hereafter payable upon or on account
of the Collateral; (b) enter into any extension, reorganization, deposit,
merger or consolidation agreement, or any agreement in any wise relating to or
affecting the Collateral, and in connection therewith may deposit or surrender
control of the Collateral thereunder, accept other property in exchange for
the Collateral and do and perform such acts and things as it may deem proper,
and any money or property received in exchange for the Collateral will be
applied to the indebtedness or thereafter held by it pursuant to the
provisions hereof; (c) insure, process and preserve the Collateral; (d) cause
the Collateral to be transferred to its name or to the name of its nominee;
(e) exercise as to the Collateral all the rights, powers and remedies of an
owner, except that so long as no default exists under the Note or hereunder
Pledgor will retain all voting rights as to the Pledged Shares.
3. PAYMENT OF TAXES.
Pledgor will pay prior to delinquency all taxes, charges,
liens and assessments against the Collateral, and upon the failure of Pledgor
to do so, Pledgee at its option may pay any of them and will be the sole judge
of the legality or validity thereof and the amount necessary to discharge the
same.
4. ACCELERATION.
At the option of Pledgee and without necessity of demand or
notice, all or any part of the indebtedness of Pledgor will immediately become
due and payable irrespective of any agreed maturity, upon the happening of any
of the following events: (a) failure to keep or perform any of the terms or
provisions of this Agreement; (b) failure to pay any installment of principal
or interest on the Note when due; (c) the levy of any attachment, execution or
other process against the Collateral; or (d) the insolvency, commission of an
act of bankruptcy, general assignment for the benefit of creditors, filing of
any petition in bankruptcy or for relief under the provisions of Title 11 of
the United States Code of, by, or against Pledgor.
5. FORECLOSURE.
In the event of the nonpayment of any indebtedness when due,
whether by acceleration or otherwise, or upon the happening of any of the
events specified in the last preceding paragraph, Pledgee may then, or at any
time thereafter, at its election, apply, set off, collect or sell in one or
more sales, or take such steps as may be necessary to liquidate and
2.
reduce to cash in the hands of Pledgee in whole or in part, with or without
any previous demands or demand of performance or notice or advertisement, the
whole or any part of the Collateral in such order as Pledgee may elect, and
any such sale may be made either at public or private sale at its place of
business or elsewhere, or at any broker's board or securities exchange, either
for cash or upon credit or for future delivery; provided, however, that if
such disposition is at private sale, then the purchase price of the Collateral
will be equal to the public market price then in effect, or, if at the time of
sale no public market for the Collateral exists, then, in recognition of the
fact that the sale of the Collateral would have to be registered under the
Securities Act of 1933, as amended, and that the expenses of such registration
are commercially unreasonable for the type and amount of collateral pledged
hereunder, Pledgee and Pledgor hereby agree that such private sale will be at
a purchase price mutually agreed to by Pledgee and Pledgor or, if the parties
cannot agree upon a purchase price, then at a purchase price established by a
majority of three independent appraisers knowledgeable of the value of the
Collateral, one named by Pledgor within ten (10) days after written request by
the Pledgee to do so, one named by Pledgee within such ten (10) day period,
and the third named by the two appraisers so selected, with the appraisal to
be rendered by such body within thirty (30) days of the appointment of the
third appraiser. The cost of such appraisal, including all appraiser's fees,
will be charged against the proceeds of sale as an expense of such sale.
Pledgee may be the purchaser of any or all Collateral so sold and hold the
same thereafter in its own right free from any claim of Pledgor or right of
redemption. Demands of performance, notices of sale, advertisements and
presence of property at sale are hereby waived, and Pledgee is hereby
authorized to sell hereunder any evidence of debt pledged to it. Any sale
hereunder may be conducted by any officer or agent of Pledgee.
In the event of the nonpayment of any indebtedness when due,
whether by acceleration or otherwise, Pledgeholder will, at the direction of
Pledgee, either deliver the Collateral to Pledgee or follow Pledgee's
instructions regarding transfer of the Collateral. Pledgor hereby appoints
Pledgeholder and any successor of Pledgeholder as escrow agent under the Joint
Escrow Instructions as his or her lawful attorney-in-fact to take such action
as may be necessary or appropriate to cause the Collateral to be transferred
to Pledgee or to any purchaser, including, without limitation, (a) to date and
filling any stock assignments necessary for the transfer in question, (b) to
deliver same together with the certificate(s), if any, evidencing the
Collateral to be transferred to the Pledgee or the purchaser.
6. APPLICATION OF SALE PROCEEDS.
The proceeds of the sale of any of the Collateral and all sums
received or collected by Pledgee from or on account of the Collateral will be
applied by Pledgee to the payment of expenses incurred or paid by Pledgee in
connection with any sale, transfer or delivery of the Collateral, to the
payment of any other costs, charges, attorneys' fees or expenses mentioned
herein, and to the payment of the indebtedness or any part hereof, all in such
order and manner as Pledgee in its discretion may determine. Pledgee will then
pay any balance to Pledgor.
3.
7. TRANSFER OF COLLATERAL.
Upon the transfer of all or any part of the indebtedness
Pledgee may transfer all or any part of the Collateral and will be fully
discharged thereafter from all liability and responsibility with respect to
the Collateral so transferred, and the transferee will be vested with all the
rights and powers of Pledgee hereunder with respect to the Collateral so
transferred; but with respect to any Collateral not so transferred Pledgee
will retain all rights and powers hereby given.
8. RELEASE OF COLLATERAL.
8.1 PARTIAL RELEASE. Pledgee agrees that so long as no
default exists under the Note or hereunder, the Pledged Shares shall, upon the
request of Pledgor, be released from pledge as the indebtedness is paid. Such
releases shall be at the rate of one share for each One and Three Tenths Cents
($0.013) of principal amount of indebtness paid. Release from pledge, however,
shall not result in release from the provisions of the escrow instructions.
8.2 OPTIONAL RELEASE. Pledgee, or Pledgeholder at the
direction of Pledgee, may at any time deliver the Collateral or any part
thereof to Pledgor and the receipt of Pledgor will be a complete and full
acquittance for the Collateral so delivered, and Pledgee and Pledgeholder will
thereafter be discharged from any liability or responsibility therefor.
9. PRESERVATION OF RIGHTS, POWERS AND REMEDIES.
Until all indebtedness will have been paid in full the power
of sale and all other rights, powers and remedies granted to Pledgee hereunder
will continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part
thereof may have become barred by any statute of limitations, or that the
personal liability of Pledgor may have ceased. The rights, powers and remedies
given to Pledgee by this Agreement will be in addition to all rights, powers
and remedies given to Pledgee by virtue of any statute or rule of law. Any
forbearance or failure or delay by Pledgee in exercising any right, power or
remedy hereunder will not be deemed to be a waiver of such right, power or
remedy, and any single or partial exercise of any right, power or remedy
hereunder will not preclude the further exercise thereof; and every right,
power and remedy of Pledgee will continue in full force and effect until such
right, power or remedy is specifically waived by an instrument in writing
executed by Pledgee.
10. MISCELLANEOUS.
10.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and no party will be liable or bound to any
other party in any manner by any warranties, representations or covenants
except as specifically set forth herein.
10.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement will inure to the benefit
of and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and
assigns
4.
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
10.3 GOVERNING LAW. This Agreement will be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
10.4 TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
10.5 NOTICES. Unless otherwise provided, any notice
required or permitted under this Agreement will be given in writing and will
be deemed effectively given upon personal delivery to the party to be notified
by hand or professional courier service, by telecopy or by facsimile, one (1)
day after deposit with Federal Express or other overnight delivery service, or
two (2) days after deposit with the United States Post Office, by registered
or certified mail, postage prepaid and addressed to the party to be notified
at the address indicated for such party on the signature page hereof, or at
such other address as such party may designate by five (5) days' advance
written notice to the other parties.
10.6 AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or infinitely), with
the written consent of Pledgee and Pledgor.
10.7 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
will be excluded from this Agreement and the balance of the Agreement will be
interpreted as if such provision were so excluded and will be enforceable in
accordance with its terms. In case any provision of this Agreement will be
invalid, illegal or unenforceable, it will to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, Pledgor has executed this Pledge Agreement as of the
date first above written.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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